Management practice

17. At the core of the Part 7 provisions is the concept of
appropriate management practice. The point about the
ASBN power
given to the local authority is that it can require the landlord to
carry out "action for the purpose of dealing with the antisocial
behaviour" - in other words, management action. It must therefore
be able to decide and define that action and, if necessary, defend
its decisions in court. The sheriff will not apply a penalty for
non-compliance unless satisfied that "having regard to all the
circumstances relating to the relevant house, it would be
reasonable for the landlord to take that action." So the
ASBN should
only specify actions which are appropriate and reasonable in the
circumstances of the particular case.

18. The 2004 Act does not give precise definitions of
appropriate management action. If it did, the local authority's
power to act would be severely hampered in many cases because the
statutory definitions could not possibly anticipate each
circumstance that might arise. The types of action that were
referred to in the development and scrutiny of the legislation
include:

Enforcing terms of the tenancy agreement

Setting clear standards

Advising tenants (for example, on reducing noise
nuisance)

Investigating complaints

Requesting the local authority to initiate an Antisocial
Behaviour Order

Providing information in support of
ASBO
proceedings

Seeking an interdict

Seeking possession at the end of the term of the tenancy

Seeking possession on the grounds of antisocial
behaviour

The Housing (Scotland) Act 2006 removes a barrier to the last of
these in the case of assured and short assured tenancies. Whether
or not a landlord engages an agent to manage the property on his
behalf, the landlord still remains responsible for these
actions.

19. This is a guide to thinking but is not an exclusive or
exhaustive list. Other guidance as to what is commonly accepted
good practice can be found in, for example, sections 1,2 and 4 of
the good practice guidance published by Communities Scotland
3, the Executive's Better Renting website
4, which provides links to various other sources, and the
Executive's antisocial behaviour website
5. Other appropriate advice is available from organisations
such as
SAL or
ARLA
and other support services in the local authority area may be in a
position to assist with suitable information.

20. As not all landlords will have internet access, authorities
should consider providing hard copy extracts of guidance to
applicants. The Scottish Executive also publishes housing
information and rights guides for private landlords and tenants,
copies of which can be obtained from the Scottish Executive Private
Sector Housing Team (0131 244 5571) or by download
6.

21. We recommend that, when considering whether to require a
landlord to take management action, the local authority officer
should consider the following key questions:

What action, if taken by the landlord, is likely to make a
difference to the antisocial behaviour that has been
identified?

Is it feasible for the landlord to take that action in the
particular circumstances?

Is it reasonable to expect the landlord to take that
action?

Are there other suitable options that would be less costly
for the landlord?

Could your decision on these matters be defended in court if
necessary?

22. The answers to these questions will need to take account of
the particular situation. Relevant factors are likely to
include:

the contract between the landlord and the tenant;

the landlord's statutory rights;

the tenant's circumstances (for example, his or her mental
health); and

the landlord's circumstances.

If there are actions that a landlord would normally take but the
particular landlord feels unable to take them, for example because
of frailty, then the landlord should take steps to ensure that
these actions can be taken. An appropriate step might be for the
landlord to engage an agent to act for him or her. Or it may be
that the local authority can offer practical assistance that will
resolve the matter satisfactorily without imposing a requirement on
the landlord.